United States ex rel. Townsend v. Twomey

• Decision Date: 21 January 1972
• Docket Number: No. 71-1074.,71-1074.
• Citation: 452 F.2d 350
• Parties: UNITED STATES of America ex rel. Charles TOWNSEND, by William R. Ming, Jr., his next friend, Petitioner (Appellee), v. John J. TWOMEY, Warden of Illinois Penitentiary, Joliet-Statesville Branch, Respondent (Appellant).
• Court: U.S. Court of Appeals — Seventh Circuit

452 F.2d 350 (1971)

UNITED STATES of America ex rel. Charles TOWNSEND, by William R. Ming, Jr., his next friend, Petitioner (Appellee), v. John J. TWOMEY, Warden of Illinois Penitentiary, Joliet-Statesville Branch, Respondent (Appellant).

No. 71-1074.

United States Court of Appeals, Seventh Circuit.

November 19, 1971.

As Amended January 21, 1972.

William J. Scott, Atty. Gen., Donald J. Veverka, Asst. Atty. Gen., James B. Zagel, Morton E. Friedman, David E. Bradshaw, Asst. Attys. Gen., Chicago, Ill., for respondent-appellant.

William R. Ming, Jr., Sophia H. Hall, Aldus S. Mitchell, Jr., Andrew M. Raucci, Chicago, Ill., for petitioner-appellee.

Before CUMMINGS, KERNER and PELL, Circuit Judges.

PELL, Circuit Judge.

This litigation, now assuming Jarndycian proportions, is once again before this court. The origin of the court procedures occurred on April 7, 1955, in the Criminal Court of Cook County, Illinois, when Charles Townsend was found guilty of murdering one Jack Boone, Sr., on December 18, 1953, and was sentenced to death.

The itinerary of the subsequent court proceedings has been elevator-like between the Cook County Court and the United States Supreme Court with intermediate stops at the Illinois Supreme Court, United States District Court and this court.

To avoid this opinion assuming the epic dimensions of the litigation engendering it, rather than detailing, except when necessary to the opinion, the history of the litigation, the net effect of which has been to give Townsend the dubious distinction of national seniority on death row, collateral reference, contained in Appendix A to this opinion, will make available the course of the court deliberations.

At the outset we are not unmindful of but reject the possibility of a human reactive assumption that extended and extensive court proceedings such as here involved must have provided a thorough ventilation of all ailments to which this conviction might be subject. Although not entirely optimistic that this opinion will mark the end of the trail, we have devoted close attention to the voluminous record now before us.

Also at the outset, we are unaware of any proper basis for the criticism leveled by Townsend toward the State as resisting in the extensive litigation here involved, Townsend's efforts to set aside his conviction. The State should, of course, prosecute only the guilty but when guilt has been determined, the prosecutorial duty would seem to be on the side of supporting such determination in the absence of a clear basis for setting it aside. The matter was demonstrably arguable here.

Further we note with commendation the vigorous and valiant efforts of Townsend's counsel on his behalf, efforts rendered without expectation of compensation reasonably commensurate with the amount of work implicit in the thorough-going representation here involved. We also note the ironically singular lack of appreciation by the client involved for that which was performed in his behalf.

The immediate reason for the case now being here is the culmination of the second federal habeas corpus proceedings in the district court by a judgment order issuing the writ. The district court order, 322 F.Supp. 158, voided a jury verdict and Townsend's death sentence and he was to be held for a new trial no later than four months from the date of the order. In the interim, Townsend was to be admitted to bail on his own recognizance without surety while awaiting trial. This court granted a stay of the order pending appeal by the respondent.

Although Townsend's counsel has developed numerous issue facets, the matter before us is basically two-pronged: a post-Witherspoon¹ consideration of the death penalty and the voluntariness of Townsend's confession which was admitted into evidence and which was a critical factor in his conviction. Following the first habeas corpus evidentiary hearing in the district court, that court held that the confession was voluntary and was not drug induced as Townsend alleges. The court nevertheless granted the writ on this first occasion on the basis that there was new evidence which should be submitted to a jury. This court reversed the latter ruling. United States ex rel. Townsend v. Ogilvie, 334 F.2d 837 (7th Cir. 1964), cert. denied, 379 U.S. 984, 85 S.Ct. 683, 13 L.Ed.2d 574 (1965).

While there is no indication in the present case of such a situation, it appears to the writer of this opinion that sometimes courts lean toward belief in the words of one who stands as a convicted criminal rather than the words of law enforcement officers. This is indeed an anomalous situation disregarding entirely as it does the fact that the pressure to recall events favorably would seem infinitely greater on the person who might thereby have his personal liberty restored than upon one who had no personal gain at stake. Thus, in Townsend's testimony it is noted that he testified as to symptoms which correspond to the objective manifestations which occur when the drug in question is given in a sufficient dosage. Every person present except Townsend testified that none of these objective manifestations were present. The witnesses included not only the police officers but also the court reporter and the Assistant State's Attorney. The latter testified that Townsend gave no outward manifestation that he was suffering from poor vision or trouble in hearing and that he seemed alert and coherent. While the question of credibility is the province of the trial, not reviewing, court, nevertheless it is not unknown for prisoners to read and reread transcripts and to have the opportunity to cogitate at length on what testimony would be most favorable to their causes.

In any event, Townsend testified at the first evidentiary hearing, and the district court then considering that testimony as well as the medical testimony found that the confession was voluntary.

Following the second evidentiary hearing, the district court again granted the writ and found, contrary to its conclusion on the previous petition, that the confession was drug induced and involuntary. The district court further concluded that even if the confession were not drug induced it was involuntary under the totality of the circumstances. We have some concern that the totality doctrine itself may be subject to occasional judicial abuse as a device to clothe a reversal where the fragmented issues separately are inadequate for that purpose and collectively only provide an intuitive surmise that the proceedings below were not quite fair. We do not, however, because of the opinion we reach, need to decide that question here.

Initially, the respondent asserts that it was an abuse of the district court's discretion to consider again the issue of the voluntariness of Townsend's confession and now to hold such confession involuntary and drug induced. As previously indicated, following Townsend's original federal evidentiary hearing, the district court specifically ruled that his confession was not drug induced and that it was voluntary. Townsend took no appeal from those findings and conclusions. However, this court gave attention to them in the course of the State's appeal on other grounds. In an opinion evidencing a thorough study of the record, Judge Swygert found that the record supported the conclusion of the district court that the confession was voluntary and not drug induced. United States ex rel. Townsend v. Ogilvie, supra, 334 F.2d at 842.

Further, many of the facts and matters set forth by the district court in the present memorandum opinion were the same as contained in the previous findings of fact as to which Judge Swygert commented:

"Were we, however, to consider the merits of these grounds, we are of the opinion that none of them, upon analysis, would constitute a sound basis for the granting of a new trial." Id. at 843.

It appears rather clear that the district court having determined in 1964 that Townsend was entitled to a new state trial has now, seven years later, taken another tack at arriving at the same result based upon factors which, as will be developed hereinafter, were inadequate as a foundation for the exercise of discretion. 28 U.S.C. § 2244(b) undoubtedly provides for a second and successive habeas corpus application but discretionary authority must be exercised soundly, and not in an unbridled fashion for the purpose of achieving a result which this court has previously held the district court could not reach.

As Judge Swygert stated in conclusion in United States ex rel. Townsend v. Ogilvie, supra, 334 F.2d at 843:

"Finally, we conclude a federal court has exhausted its statutory power in a habeas corpus proceeding after it has decided a confession, introduced in a state criminal trial, was voluntarily given. The court does not possess a residuum of power to search the record for procedural errors not involving constitutional rights and issue a writ of habeas corpus for the purpose of providing a new trial in the state court.

"A federal court acting in this fashion would constitute a super appellate tribunal and encroach upon state appellate court prerogatives; such action would affront the principles of federalism upon which our federal-state juridic system operates."

An analogous situation presented itself to the Second Circuit in United States ex rel. Schnitzler v. Follette, 406 F.2d 319 (2d Cir.), cert. denied, 395 U.S. 926, 89 S.Ct. 1783, 23 L.Ed.2d 244 (1969). There the district court granted the writ and was reversed by the court of appeals. The petitioner then returned to the district court where a second district judge again issued the writ on the same ground previously rejected by the court of appeals. On appeal from that decision, the Second Circuit noted that 28 U.S.C. § 2244(b) does give the district court discretion to entertain successive identical applications for a writ of habeas corpus but noted that "it hardly encourages such action" and that...